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Sep-ti-02 O5:1Gem From 7 THUS 7.05 Fale UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MASTER FILE INRE: — AIMSTER COPYRIGHT No. 01 € 8933 LITIGATION Judge Marvin E. Aspen PLAINTIFFS’ PROPOSED PRELIMINARY INJUNCTION ORDER AND MEMORANDUM IN SUPPORT lL INTRODUCTION (On September 4, 2002, tus Court issued a Memorandum Upon and Order granting Plaintiffs’ motion for preliminary injunction against Defendants’ operation of Aimster, “a service whose very raison d'etre appears to be the facilitation of and contribution to copyright infingement on a massive ceale." Soe In re: Aimetes Copyright Litigation, _ F. Supp. 24 __, 2002 WL 31006142 at *1 (NLD. Ill Sept. 4, 2002) (Court Order"), The Court directed Plaintiffs to submit a proposed preliminary injunction order taking into account the “unique problem with regard to the identification of infringing material and the wansitory nature of [Aimster's) end-users,” id, at *27, and invited the partiee 10 coander the reasoning embodied in the Minth Cireuit’s decision in A&M Records, Inc. v, Nanster. Inc, 239 F.3d 1004 (9th Cir. 2001) (“Napster 1”). Plaintiffs have fashioned such an order. See Exhubit A (“Proposed Order") ‘The Proposed Order reflects Plaintiffs’ consideration of three key factors: (2) the experience with and failures of the Napster injunction; (b) advancements in filtering technology for peer to-peer cystems; and (0) Ai '0 reported development of a new “Digital Download Technology,” which, according to Aimster, operates “with the Saprll-02 OB:18en Frome i THiS PUG eal ne copyright holder” In light of these factors. the Proposed Order explicit permission differs from the modified preliminary injuncnon issued on remand in Napster L See Exhibit B (Napster Injunction”).! Nonetheless, Plaintiffs believe the Proposed Under 1s appropriate and necessary, and strikes the proper balance between preventing ongoing and furure copyright infringement on the Aimnster system, “while allowing non-infinging uses of me Almsier sysicut, ifeuy, wv continus.” Court Order ot *27- I. THE FAILURE OF THE NAPSTER INJUNCTION In Napster L, the Ninth Circuit held that 2 preliminary injunction against Nepster’s conduct in operating its peer-to-peer system was “not only warrensed but required.” A&M Records , Inc, v. Napster, Inc., 239 F.3d 1004, 1027 (9th Cir. 2001). To that end, the Court directed Napster “to affirmatively use its ability to patrol its system and proclude access ta infringing files” an its system. Jd, While the Court also reauired the provision of certain notices by plaintiffs, it specially placed on Napster the burden “of policing the system within the limts of the system.” Jd. [As directed by the Ninth Circuit, the district court in Napster entered 2 modified preliminary injunction allocating burdens emong the parties. For example, the recording company pleintiffe were to provide Napster with identifying information for each work, including: (a) the title of the work; (b) the name of the performing artist; (c) a single “file name" of the work on the Napster system;? and (d) a statement certitying ownership.’ : ‘The district court in Napster issued five separate preliminary injunction orders, one for each of the lawsuits filed in that litigation. Variations’ in the preliminary Jajunotions for the ceenrding enmpanies and for the amsic publishers exist with respect 10 the notice requirements, but the injunctions are otherwise similar. The injunction issued in Case No. C 99-05183 (the record company injunction) and the injunction issued in Case No. C 00-0074 (the music publisher's injunction) are attached to this memorandum as Exhibits B and J, respectively. 2 Tmmportantly, the district court did not requice that plaintiffs identify every inftinging file name aveilable on the Napster system: “Given the limited time an inflinging file may appear on the system and the individual user's ability to narne her files, relief dependent on plaintifis" identifying cach ‘specific inffinging file’ would be illusory.” Exhibit B, Napster Injunction § 4, n.2. 2 Seorli-02 O5:t8en From I TS POT ele Evhihit R, Napster injunction €7 Complying with the Napster Injunction was exmemely burdensome for Plaintiffs, requiring thousands of hours of investigative work, hundreds of hours of employee time, and the hiring of outside experts. See Exhibit C, (“Plaintifis’ Compliance Report”), For its part, Napster had three (3) business days to prevent such d notice. Exhibit B, Napster works from appearing on its system once it rect Tijunction 1] 5 @ 6. Finally, dic iujuuctiva wade it vleat Wet Napates bore “uve Landen “of policing the system within the limits of the system.'" Exhibit B, Napster Injunction 14 (citing Napster D. Although the Napster Injunction was in effect between March 5, 2001 and July 11, 2001, it simply failed to work. During that four-month period, the district court was fuived to appuint a tecluival advises, the parties filed numerous reports on Napster"s “compliance” and “non-compliance” with the injunction, the district court received several written and oral reports fiom the technical advisor, and held several hearings, Eventually, the district cour ordered Napster to disable completely its file-sharing system until such time that it could show the district coust it was doing everything feasible to block infiingement ond “achieve full compliance with the modificd giclissinary injunction.” This “shut-down” order wes affirmed by the Ninth Cireuit. A&M Records Inc. v. Napster, Ine,, 284 F.3d 1091, 1095 (9th Cir. 2002) (“Napster I”). ‘The most significant reason for the failure of the Napster injunction was Napsier’s refusal to implement an effective filtering technology. As outlined in a report filed by plaiisilts with dec isuict cows vacivus Glteriuy scchnvlugies were available w Napsuer. See Exhibit C, Plaintiffs’ Compliance Report, For example, Napster could have chosen to “filter in” only works that were licensed for dismibution; or, it could have deployed igitai fingerprinting technology that recognized whether a particular music file (based on certain characteristics, like sound waves or other metadata) was authorized for _ As is apparent from Exhibit J, the music publishers "notice" requirements were different than that discussed herein,